BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, October 25, 2002.)
The U.S. Court of Appeals for the Ninth Circuit has affirmed summary judgment in favor of Court TV concerning its use of video extracts depicting the beating of Reginald Denny during the 1992 Los Angeles riots.1 In reaching its decision, the Court focused on four mandatory but non-exclusive factors to be considered in determining whether the defense of fair use should apply.
In describing the background of the case, the Court states: “In this age of television and news, it is frequently the image accompanying the story that leaves an event seared into the viewership’s collective memory. The riots that shook Los Angeles in April 1992 are book-ended by two such images: the footage of police officers beating motorist Rodney King, which led to the trial and verdict that sparked the rioting, and the footage of rioters beating truck driver Reginald Denny, which through television synecdoche has come to symbolize in a few moments the multiple days of violence that swept over the city.”
Los Angeles News Service, Inc. (“LANS”), an independent news gathering organization that produces and licenses video and audio recordings of breaking news events, filmed the Los Angeles riots from its helicopter. LANS is co-owned by Marika Tur, who shot the footage and Robert Tur, her husband and pilot of the helicopter. They applied for and received copyrights for four separate segments of the recordings. Those segments, totaling about nine minutes of footage, are known as “Beating of Reginald Denny,” “Beating of Man in White Panel Truck,” “Beating of Man in Brown Hatchback with Rescue,” and “Japanese Man in Brown Bronco Attacked by Rioters.”
LANS contends that in its investigation of unauthorized rebroadcasts of its copyrighted works, it discovered that Group W had distributed the four works over its Newsfeed service and that several recipients of the Newsfeed distribution made use of the copyrighted works. One recipient, Court TV, used a few seconds of footage from “Beating of Reginald Denny” in on-air “teaser” spots promoting its coverage of the trial of Damian Williams and his co-defendant Henry Watson. It also incorporated a few seconds of the brick-throwing footage, into the background of the introductory montage for “Prime Time Justice.” Court TV did not dispute that it had used the footage, but asserted that it had obtained the footage from the courtroom video monitor rather than from Newsfeed.
The district court granted summary judgment to Court TV. On appeal, the Court indicated that it was left to decide only whether, on undisputed facts, the fair use defense shields Court TV’s rebroadcast of portions of the footage.
The decision recites the factors to be considered in determining whether the use made of a work in any particular case is a fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The most important component of the inquiry into the “purpose and character of the use” is whether the allegedly fair use was “transformative,” i.e., whether the second use “adds something new with a further purpose of different character, altering the first with new expression, meaning or message.” The more transformative the new work, the less will be the significance of the other factors that may weigh against the finding of fair use.
The rebroadcast of the videos in and of itself is not transformative. Merely taking the most visually arresting excerpt from the nine minutes of footage cannot be said to have added anything new. Extracting the clip of the Denny beating and juxtaposing it with a clip from Denny’s testimony updates, but does not change, the purpose of depicting the attack on Denny – its newsworthiness.
The use of the clip in the video montage that introduced the “Prime Time Justice” program has a better claim to being transformative. The development of the montage at least plausibly incorporates the element of creativity beyond mere republication, and it serves some purpose beyond newsworthiness.
One consideration affecting the analysis is that the use by Court TV was largely commercial, i.e., for promoting its coverage rather than simply reporting, or reporting on, the news. (In a footnote, the Court indicates that even straight reporting may, in some cases, be “commercial” for purposes of this factor. It notes that the crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain, but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.)
Here, the more commercially exploitive use to which Court TV put the clip (the opening montage of “Prime Time Justice”), which was calculated to promote the program and retain the attention of a viewer who happened to see it, was also the more transformative. By contrast, the use of the clip in coverage teasers was less transformative, meaning that a commercial purpose would take on a greater weight, and this use more plausibly was associated with news reporting. And, because the newsworthy event was the trial rather than the beating, Court TV was not in direct competition with LANS.
On balance, the Court indicates that the “purpose and character” factor weighs weakly in favor of fair use.
In analyzing the “nature of the copyrighted work” the decision indicates that the Denny beating is informational, factual and news; each characteristic strongly favors the user, and this factor weighs in favor of finding fair use.
It is undisputed that the amount of “Beating of Reginald Denny” actually used by Court TV was quite small, both in absolute terms and in relation to the copyrighted work as a whole. The Court describes the question as whether the amount of footage Court TV left on the cutting room floor weighs in favor of fair use or against it.
LANS asserts that, although an alleged infringement may have used only a small portion of several minutes of footage, the portion used constituted the “heart” – the most valuable and pertinent portion – of the copyrighted material.
Case law interpreting this factor, although faithful to the direction in the statute that a court is to consider the substantiality of the portion used in relation to the copyrighted work as a whole, also has noted that the purpose and character of the use are relevant in evaluating the denominator. The frames that Court TV used for promotional purposes were closely tied to the subject matter it was promoting – the trial, and by choosing the most recognizable frames, it eliminated the need to take more because viewers required only a short glimpse of the footage to be reminded of who Williams was and why they might be interested in his trial.
The Court notes that it does not gainsay the importance of the frames Court TV used – “if not the heart, they amount at least to a ventricle.” Weighing the brevity of the portion copied against its significance, the Court finds that this factor appears neutral.
In evaluating the effect of Court TV’s unauthorized use on the potential market for licenses to rebroadcast the work, the Court considers not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original.2
The transformative use of the clip in the “Prime Time Justice” montage was quite unlikely to affect the relevant market. The rebroadcast of the clip to promote trial coverage, which was a less transformative use, is, to the Court, more problematic. LANS argues that Court TV made its unauthorized use at a time when a genuine market existed for the Denny footage. However, the relevant question is whether the use of three-second clips of the work – that is, the uncompensated use, not merely an additional use in an already saturated market – would substantially affect the market for licenses to show “Beating of Reginald Denny” in its entirety. The Court notes that in a previous lawsuit, LANS had indicated that a full forty-five seconds of the video deserved to be called the “heart” of the work. Also many, though not all, of LANS’s licensees used a clip in the course of news and current affairs programming that more likely than not required more than just a few seconds of video.
The Court also notes that Court TV operated in a significantly different market than did LANS. It was not competing with LANS to show riot coverage or even breaking news of the same general type (the courtroom setting is singularly unsuited to helicopter coverage.) The Court decides that the fourth factor points in favor of fair use.
The Court then concludes that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use, except the substantiality of the use, which it treats as neutral. Accordingly, it agrees with the district court that Court TV’s use was protected and affirms the grant of summary judgment in its favor.
This case also involved a claim against CBS Broadcasting, Inc. which was discussed and decided on evidentiary grounds unrelated to the issue of fair use.
1 Los Angeles News Service v. CBS Broadcasting, Inc., Nos. 00-56470 and 00-57000, U.S. Court of Appeals Ninth Circuit, (September 16, 2002).
2 Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)